Ramirez v. State

• Decision Date: 24 March 2011
• Docket Number: No. 07–09–0157–CR.,07–09–0157–CR.
• Citation: Ramirez v. State , 336 S.W.3d 846 (Tex. App. 2011)
• Parties: Cody RAMIREZ, Appellant,v.The STATE of Texas, Appellee.
• Writing for the Court: Before CAMPBELL and HANCOCK and PIRTLE, JJ.
• Court: Texas Court of Appeals

336 S.W.3d 846

Cody RAMIREZ, Appellant,

v.The STATE of Texas, Appellee.

No. 07–09–0157–CR.

Court of Appeals of Texas, Amarillo,Panel A.

March 24, 2011.

Maxwell C. Peck, III, Attorney at Law, Lubbock, TX, for Appellant.Jeffrey S. Ford, Assistant Criminal District Attorney, Lubbock, TX, for Appellee.Before CAMPBELL and HANCOCK and PIRTLE, JJ.

OPINION

PATRICK A. PIRTLE, Justice.

Following a plea of not guilty, Appellant, Cody Ramirez, was convicted by a jury of aggravated assault of a public servant,¹ with an affirmative finding on use of a deadly weapon.² Punishment was assessed by the jury at confinement for life. Presenting two issues, Appellant questions whether (1) the trial court constructively denied his right to testify in violation of due process by indicating an intent to allow improper impeachment evidence and (2) the trial court erred in not submitting a jury charge that properly instructed it regarding the affirmative defense of duress. ³ We affirm.

Background Facts

At approximately 4:00 a.m. on December 5, 2006, Officers Michael Chavez and Michael Matsik, in separate patrol cars, responded to an aggravated robbery at a local gaming establishment. Per procedure, they retrieved their patrol rifles from the trunks of their respective patrol cars. While Officer Chavez was loading his rifle, two suspects wearing black ski masks and hooded sweatshirts exited the back door of the gaming establishment and began running for the east gate. Although ordered to the ground, the two suspects began to flee in opposite directions. Officer Chavez gave chase to the suspect running south, while Officer Matsik gave chase to the other suspect. At the time, both officers observed a small gray or silver car parked in the alley.

Officer Matsik temporarily lost sight of his suspect when the suspect cut through a fence. A female bystander pointed Officer Matsik in the suspect's direction. Although the area was dark, Officer Matsik observed a silhouette followed by a muzzle flash.⁴ He immediately dropped to the ground as multiple shots were fired. He picked himself up to return fire but noticed the safety on his rifle was still engaged. The suspect had retreated over a gate into a residential area, and Officer Matsik could not get a clear shot.

After Officer Chavez heard shots fired, he decided to check on his fellow officer. As he approached, he saw the silver car which he had earlier observed in the alley speed away. Other officers on the scene pursued the car and eventually arrested Appellant. The second suspect, the suspect Officer Chavez had originally pursued, was later found hiding under a door that was leaning up against a building.

After the suspects were arrested, Officer Matsik experienced a burning sensation on his upper thigh. He pulled his left pant leg up and, using the lights of the patrol car, noticed a bullet hole in the lower part of the pant leg toward his ankle. He also had graze wounds on his upper thigh and just above his left wrist. He concluded that bullets were fired in his direction and that contact was made on at least three occasions.

Although Appellant was initially charged in a six-count indictment, the State announced just before trial that it was proceeding only on count VI, the charge of aggravated assault with a deadly weapon against Officer Matsik. After a jury trial, Appellant was convicted and sentenced to life imprisonment.

I. Issue One—Did the trial court constructively deny Appellant his right to testify by announcing that it would permit the State to cross-examine him with improper impeachment evidence?

Appellant proceeded to trial on the theory of duress as an affirmative defense. The theory was that Appellant's uncle, Richard Ramirez, ⁵ coerced him into committing the aggravated robbery and threatened to kill him if he got caught. Ramirez testified that he “masterminded” the robbery at the gaming establishment, provided Appellant with a gun, and threatened his life. He further testified that his instructions to Appellant included not getting caught or he would have to “deal with” him. His advice to Appellant to evade officers was to “shoot low” and “[g]et away.” Richard Ramirez was inside the gaming establishment at the time of the robbery but was not armed at the time and was not near Appellant.

Following Ramirez's testimony, defense counsel advised the trial court that Appellant indicated he wanted to testify and asked that he be properly admonished. Defense counsel's understanding at that time was that Appellant would only be impeached with prior felonies or misdemeanors involving moral turpitude. The prosecutor responded that with the affirmative defense of duress, Appellant would have to accept full responsibility for the crime and that his character and relationship with Richard Ramirez would be explored.

The jury was excused and Appellant took the stand and was admonished by the trial court about the waiver of his right against self-incrimination. After a brief question and answer period, the trial court found that Appellant had freely and voluntarily waived that right. The court then requested that the prosecutor reveal her intended line of questioning.

The prosecutor advised the court that based on the affirmative defense of duress, she intended to explore Appellant's relationship with his uncle which would put Appellant's character at issue. She also expressed her intent to question Appellant on his problems with the juvenile system and possible gang activity.

The trial court ruled that the prosecutor could ask questions on the proposed areas, except for any questions relating to gang activity. Defense counsel sought clarification and the trial court explained that its ruling would permit questions on Appellant's juvenile record and extraneous offenses without limiting those extraneous offenses to prior acts involving moral turpitude.

Defense counsel then asked to confer with Appellant after which he raised the following objection:

Your Honor, in light of the Court's ruling, allowing the prosecution to go into juvenile records and extraneous offenses, I have spoken with my client, [Appellant], and he now informs me that he does not wish to testify at this point during the guilt—innocence stage.

I wish to state for the record that I am objecting to the Court's ruling, and I would submit that the ruling itself prohibits him from taking the stand under the present circumstances.

Defense counsel's objection was overruled.

By his first issue, Appellant argues that the trial court's ruling constructively denied him the right to testify in his own defense. While acknowledging that Rule 404(b) of the Texas Rules of Evidence allows the admission of other crimes, wrongs or acts for certain limited purposes, Appellant maintains the State did not offer a legitimate limited purpose for the scope of its intended cross-examination. He further maintains the trial court's ruling would have allowed impermissible impeachment evidence regarding Appellant's character. The court's action, he asserts, presented him with a Hobson's choice.

An accused has the right to testify on his own behalf. See Rock v. Arkansas, 483 U.S. 44, 49, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). See also Tex. Const. art. I, section 10; Tex.Code Crim. Proc. Ann. art. 38.08 (West 2005). If, however, an accused exercises his right to testify, he is subject to the same rules governing examination and cross-examination as other witnesses. Brown v. State, 617 S.W.2d 234, 236 (Tex.Crim.App.1981). “He may be contradicted, impeached, discredited, attacked, sustained, bolstered up, made to give evidence against himself, cross-examined as to new matter, and treated in every respect as any other witness testifying, except where there are overriding constitutional or statutory prohibitions.” (Citations omitted). Id.

The decision of an accused whether to testify “seldom turns on the resolution of one factor among many.” New Jersey v. Portash, 440 U.S. 450, 467, 99 S.Ct. 1292, 59 L.Ed.2d 501 (1979) (Blackmun, J., dissenting). When a defendant chooses not to testify, a reviewing court has no way of knowing whether the State actually would have sought to impeach him with inadmissible evidence of extraneous offenses or prior convictions. Luce v. United States, 469 U.S. 38, 42, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). In Luce, the Supreme Court adopted the rule that “[t]he preferred method for raising claims such as [Appellant's] would be for the defendant to take the stand and appeal a subsequent conviction.... Only in this way may the claim be presented to a reviewing court in a concrete factual context.” Id. at 43, 105 S.Ct. 460 (citing Portash, 440 U.S. at 462, 99 S.Ct. 1292 (Powell, J., concurring)). The Supreme Court held that because Luce did not testify, he failed to preserve his claim of improper impeachment evidence. Luce, 469 U.S. at 43, 105 S.Ct. 460.

In Jackson v. State, 992 S.W.2d 469, 479–80 (Tex.Crim.App.1999), the Court rejected an argument similar to the one being made here, i.e., that the trial court effectively denied the defendant his right to testify by refusing to limit the State's cross-examination. In Jackson, the defendant wanted to testify during the punishment phase of his capital murder case, for the limited purpose of raising mitigation issues. He sought to foreclose cross-examination about extraneous offenses. Jackson, 992 S.W.2d at 479. Because the defendant failed to testify the Court found the reasoning of Luce to be applicable and held that he failed to preserve error for review. Id. at 480.

In the present case, after conferring with his counsel, Appellant chose not to testify. Without his testimony, this Court cannot speculate on whether the prosecutor would have cross-examined Appellant on matters outside the scope of permissible impeachment. Notwithstanding that the prosecutor had announced certain areas which she intended to explore on cross-examination, without Appellant's...